Interesting Montana bill

1. I think ATF takes the position in prohibited person cases that a gun must at least have moved in interstate commerce at some time (shown by proof it was manufactured out of state). That may be because the statute requires a link to interstate commerce for these cases; ATF might contend that all other federal restrictions still apply to a gun made in-state.

2. The value of a state law declaring this ... hmm... normally, you'd say not a lot. If it's within the commerce power, it doesn't matter that a state declares that it's not. But in the Lopez case, as I recall, the Court made a big affair of schools traditionally being a state matter, and that states had their own laws regulating gun possession near schools. I couldn't see the relevance there, either (if it's in or affecting commerce, what matters it that states also regulate it, or the commerce relates to traditional state domains? It's either in or affecting commerce, or it's not). So perhaps such a state law would have some weight in the Supremes.

Even if it was manufactured and sold, and remains in the state of Montana, and never leaves the state, doesn't SCOTUS precedent hold that it is nevertheless in interstate commerce? What was that wheat case from IIRC 1943 that held that wheat grown for personal, on-the-farm consumption still constituted wheat for placement in interstate commerce purposes because the defendant thereby did not need to buy wheat from out of state which was interstate commerce. Sort of the subsistence-substitution rule.

The wheat case was Wickerd v. Filburn, where the court held that wheat grown on the farm was nevertheless in interstate commerce because it could affect interstate commerce if the farmer elected not to purchase out of state wheat (or purchased less). That case was an abomination. It was an absurdity and ran exactly counter to the previous case law. (See Gibbons v. Ogden, 22 U.S. 1 (1924)). While it would be asking a lot of a court filled with modern Americans (translated: spineless sissies), it makes just as much sense to reverse Wickerd as it did to reverse Plessy v. Ferguson. When something is fundamentally flawed and patently wrong, the Court shouldn't simply sit by say, "Well that's just the way it has been for seventy years. Who are we to do anything about it?"

Lopez reasserted the fact that neither schools nor firearms fall within interstate commerce simply because of their inherent nature. Congress side-stepped the issue and rewrote the law to essentially say, "We ban firearms near schools if those firearms are in interstate commerce." No one wants to be the test case to determine when exactly firearms are in interstate commerce. But the law--even as it is now written--recognizes that a firearm does not necessarily fall within interstate commerce.

Even if a firearm is manufactured in another state, it is only in interstate commerce for the period of transit. It does not remain in interstate commerce indefinitely. What if Alaska passed this law? Would that be more convincing?

The problem that the court found with the statute at issue in Lopez was that "§922(q) contains no jurisdictional element which would ensure, through case by case inquiry, that the firearm possession in question affects interstate commerce."

The gun-free school zone act had not established a nexus with interstate commerce.

From Lopez:

We conclude, consistent with the great weight
of our case law, that the proper test requires
an analysis of whether the regulated
activity "substantially affects" interstate
commerce.

[T]he Government concedes that "[n]either the
statute nor its legislative history contain[s]
express congressional findings regarding the
effects upon interstate commerce of gun
possession in a school zone."

We agree with the Government that Congress
normally is not required to make formal
findings as to the substantial burdens that an
activity has on interstate commerce. But to
the extent that congressional findings would
enable us to evaluate the legislative judgment
that the activity in question substantially
affected interstate commerce, even though no
such substantial effect was visible to the
naked eye, they are lacking here.

As Jeff points out, what Congress did in response to Lopez was to add a condition that the gun in question has to affect interstate commerce. Sort of like Congress saying to the Supremes: "Ok, here - here's your interstate commerce nexus. Happy?"

And Jeff, I couldn't agree more regarding your analysis of Wickard v. Fillburn. I had a huge problem with the case when I first learned it and I still do now. Talk about the Court bending over backwards, stretching logic and reality to save a law. After that, there was seemingly no going back. I was relieved when I first heard about Lopez - apparently the Court can still strike down a law as exceeding the authority of Congress! Who'd a thunk it.

Okay, so they are saying that the federal 2nd amendment and the Montana Constitution recognize a right to keep and bear arms and that fireamrs made form "basic materials" like sheet metal are not subject to federal regulation. Unless, of course, it's a fluu auto firearm or a really big firearm:

NEW SECTION. Section 5. Exceptions. [Section 4] does not apply to:

(1) a firearm that cannot be carried and used by one person;

(2) a firearm that has a bore diameter greater than 1 1/2 inches and that uses smokeless powder, not black powder, as a propellant;

(3) ammunition with a projectile that explodes using an explosion of chemical energy after the projectile leaves the firearm; or

(4) a firearm that discharges two or more projectiles with one activation of the trigger or other firing device.

I don;t see how this follows logically. If the premise is that a firearm made from "basic materials" is not subject to regulation under the commerce clause then why should only certian types of firearms, when made from the same basic materials, not have that protection?

If Montana wants to regulate machine guns, then they should give them the same protection from the commerce clause as semi-autos, but then enact legislation to regulate them.